A lot of momentum has been built to clarify where people can exercise their constitutional right to the shoreline.”

Topher Hamblett, Save the Bay

As beaches change, the potential conflicts increase. Establishing the public right now may be vitally important to maintaining it 15 to 20 years from now.”

Tom Gibson, Friends of the Waterfront

June 2 was a day of celebration for advocates working to clarify the public’s rights to walk, fish, swim and visit the shorelines of Rhode Island. That was the day the Rhode Island House of Representatives voted unanimously (64-0) in favor of a controversial “Shoreline Access Bill” that would impact all the coastal shores of the Ocean State.

There was much joy, elation and celebration among the legislators, citizens and volunteer groups who had lobbied, some of them for years, for action on a bill like this.

Three weeks later, an icy winter wave washed away much of that joy. The Rhode Island Senate failed to take any action on that bill, and the General Assembly session ended with the goal halfway achieved. Now the advocates turn their sites to 2023.

“It’s a little discouraging that we have to start from scratch,” said state Rep. Terri Cortvriend, representing Portsmouth and Middletown. Because there will be a new General Assembly seated next year after the General Election in November, the bill can’t carry over from this session to next. It will be treated like a new bill, beginning the way all bills do, with committee hearings and testimony.

“My plan this summer is to sit with some senators who I know were supportive of the bill, where I know their constituents are supportive, and walk through the bill with them, to see what their concerns are, if any,” Cortvriend said.

The Aquidneck Island legislator is one of the central figures in the shoreline access fight, as she was co-chairwoman of a special House study commission formed to examine the issue. That commission included more than 20 people, some of whom entered the process as skeptics, who ultimately came together and issued a resounding call for legislation to better define the high tide lines of the state, and the public’s right to access the shore along — and slightly beyond — that high tide line.

A quick history

The public’s right to access the shore goes back nearly two centuries and was written into the Rhode Island Constitution of 1842. It existed mostly unchallenged for another 140 years until the Rhode Island Supreme Court issued a landmark ruling in a case known as “State vs. Ibbison et. al.”

The case was complex, but the big takeaway is that the court, for the first time in Rhode Island’s legal history, provided a definition of the shore. It wrote that the shore is determined by “the mean-high-tide line,” further defined as an average of all high tides over an astronomical cycle of 18.6 years.

That has been the legal standard in Rhode Island for nearly 40 years, so Rhode Island’s current demarcation between public access and private property is the average height of roughly 14,000 high tides over the preceding two decades. Advocates say it sounds good, but it is entirely useless, as no one — fisherman, disgruntled waterfront property owner, or police officer called to the scene of a dispute — could stand on any beach on any given day and discern the average high tide over the previous 18.6 years.

The recent House study commission emerged with two major recommendations to clear all this up. First is a new definition of the shore, which it calls the “Recognizable High Tide Line,” or the point of land where the most recent high tide is visible (marked with shells, seaweed, debris, etc.). The second is to clarify that the public’s right to access and traverse extends beyond that line. The commission recommended 10 feet; the House of Representatives shortened it to 6 feet.

And that is the bill that passed unanimously in the House of Representatives a month ago but died in the Senate.

What went wrong

Rep. Cortvriend has done some soul-searching since the end of the General Assembly session, and she’s second-guessing a little. She believes one mistake was not having a Senate sponsor submit a matching bill in that chamber. That problem arose because Senate bills must be submitted by a deadline in February, and the study commission did not even release its findings until March.

Even so, the Senate could have taken up the House bill, and Cortvriend thought it would. “We had multiple senators going to leadership and asking about the bill,” she said. “I thought they might take it up. I let many of the advocates do the lobbying, and I wasn’t over there talking to senators myself. In the end, I really believe the blockage was at the highest levels of the Senate.”

As director of advocacy and policy for Save the Bay, which has been a strong proponent of the Shoreline Access bill, Topher Hamblett has spent many days lobbying up at Smith Hill. He looks at what happened to the bill as a mixture of great success and great disappointment.

The great success was the convergence of dozens of people, from an array of backgrounds, coming together to issue a comprehensive report on the need to strengthen the public’s rights to the shore. “I think we can hit the ground running next year,” Hamblett said. “A lot of momentum has been built to clarify where people can exercise their constitutional right to the shoreline … The report gave people a lot of confidence in the bill itself. This was a thoroughly vetted issue.”

The final outcome, he agreed, was “disappointing.”

“In retrosepct, it would have been beneficial to have sponsors in the senate,” he said. “Every senator I talked to was supportive of the bill. I feel that if it has been brought to a vote, it would have passed.”

Optimism for the future

Tom Gibson is a board member of “Friends of the Waterfront,” a Newport-based volunteer group that has been advocating for public access to Newport Harbor and other coastal areas for nearly 40 years. He’s retired now, but he spent more than 30 years working in Washington, DC, in various roles and for various administrations.

“You have to say this is a positive,” he said. “I can’t tell you how many times I’ve kicked a tough issue like this to a committee, and you know it’s probably not going to go anywhere. Committees are where tough issues go to die. I can’t get my condo association to vote unanimously on anything, nevermind on an issue this loaded … So I think it’s remarkable what the leadership did, shepherding this through 64-0. It’s remarkable. We can’t look at that as anything other than a victory.”

Like Cortvriend and Hamblett, Gibson believes this bill is critical to quality of life and protection of public rights for all Rhode Islanders. “When people’s rights aren’t easily known, that in itself tends to be a barrier to people exercising their rights,” he said.

“In the wake of the 1982 Ibbotson decision, there’s been tremendous confusion about where the public is allowed to be. We’ve had more development along the waterfront since then, and the ambiguity and confusion need to be addressed.

This bill restores a common sense definition of the high tide line, and it says you get to keep your feet dry when the tide is high.

“It restores the situation to where it was for 150 years.”

Looking ahead decades

All of the advocates say this is an important issue for 2022, but also for 2052.

“Seas are rising, and that brings with it a whole host of pressures,” said Hamblett of Save the Bay. “Rising seas and erosion from coastal storms are really going to challenge us, and one of those challenges will be to maintain public access. How will we maintain our public access to the shore as seas rise?”

Gibson, of the Newport advocacy group, agrees. “I also used to live in the Outer Banks of North Carolina, and there were oceanfront properties there that are now gone.”

Gibson believes clarifying the issue now is critical to keeping it clarified in the future. “The coast is changing because of sea level rise, and the right of the public moves along with the high tide … As beaches change, the potential conflicts increase. Establishing the public right now may be vitally important to maintaining it 15 to 20 years from now.”